185 A.3d 877
N.J. Super. Ct. App. Div.2018Background
- D.S. obtained an ex parte temporary restraining order (TRO) under the Prevention of Domestic Violence Act (PDVA) alleging defendant Hemenway forcibly entered her apartment, assaulted her and her mother, and threatened them; the TRO included authorization to search for and seize weapons and identified Hemenway's residence and vehicles.
- Old Bridge police attempted service at the apartment; Hemenway initially refused entry, saying his attorney told him not to allow officers in; officers arrested him for obstructing a judicial order and seized his keys incident to arrest.
- Officers entered the apartment, detected a strong smell of marijuana and saw numerous air fresheners; in plain view they observed a Mason jar with marijuana and a bag of suspected cocaine and found a large gun safe; these observations led to a telephonic narcotics search warrant from the Criminal Part.
- Subsequent searches (residence and later vehicles) recovered cocaine, marijuana, drug paraphernalia, cash, and hollow-point bullets; Family Part later denied a final restraining order (FRO) for lack of proof of a "dating relationship."
- Hemenway pled guilty to possession with intent to distribute (preserving suppression issue), appealed denial of his motion to suppress arguing the TRO-initiated entry/search and later warrants were invalid and the arrest unlawful.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hemenway) | Held |
|---|---|---|---|
| Validity of Family Part TRO/search-warrant entry | TRO was properly issued on D.S.’s sworn ex parte testimony; officers were authorized to execute the weapon-search provision | TRO was procured by misrepresentation (no dating relationship); PDVA standard "reasonable cause" is lower than probable cause and unconstitutional | TRO was validly issued based on D.S.’s sworn testimony; court avoids constitutional question and upholds TRO as effective at time of execution |
| Lawfulness of arrest for obstructing judicial order | Officers lawfully arrested Hemenway after he refused entry required by the TRO/search-warrant, giving probable cause for obstruction | Arrest was pretextual and unlawful, so subsequent searches were fruits of an illegal arrest | Arrest upheld as lawful; seizure of keys incident to arrest and entry were proper |
| Plain-view discovery and subsequent telephonic warrant | Observations (odor of marijuana, air fresheners, visible contraband) upon lawful entry gave probable cause for telephonic narcotics warrant | Initial entry was a pretext for narcotics search exceeding TRO scope; telephonic warrant tainted by prior defects | Plain-view observations provided probable cause; telephonic warrant was procedurally sound for residence (court did not find probable cause for vehicles but noted vehicles could be searched for weapons under TRO) |
| Miranda/custody and admissibility of statements | Officers were not required to give Miranda because Hemenway was not in custody when served; his statements were non-incriminating regarding criminal charges | Statements were compelled or product of custodial interrogation and should be suppressed | Court held Hemenway was not in custody for Miranda purposes; statements admissible (not incriminating for criminal charges) |
Key Cases Cited
- State v. Dispoto, 383 N.J. Super. 205 (App. Div.) (domestic-violence warrant standards and Miranda custody analysis)
- State v. Cassidy, 179 N.J. 150 (2004) (limits on defective PDVA ex parte procedures; TRO/warrant treated cautiously)
- State v. Harris, 211 N.J. 566 (2012) (discussion re: PDVA search-authority and debate over "reasonable cause" vs probable cause)
- State v. Valencia, 93 N.J. 126 (1983) (presumption of validity for warrants)
- State v. Sullivan, 169 N.J. 204 (2001) (probable cause and totality-of-the-circumstances standard for warrants)
- Franks v. Delaware, 438 U.S. 154 (1978) (procedure for challenging warrant affidavit misrepresentations)
- Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation and Fifth Amendment warnings)